A federal circuit judge wants the Supreme Court to scrap a longstanding test for determining cruel and unusual punishment. In an October speech to the Federalist Society, Reuters reported, Judge Thomas Hardiman, appointed by President George W. Bush to the Court of Appeals for the 3rd Circuit, advocated a “return to the text and original meaning of the Eighth Amendment” and an end to the “evolving standards of decency” test created by the Supreme Court in the 1950s.
In 1958, the Supreme Court ruled that stripping someone’s citizenship for committing a crime violated the Eighth Amendment. Supreme Court Chief Justice Earl Warren wrote that, to determine what constitutes cruel or unusual, the Court “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” That test has since been used by liberal Supreme Court majorities to strike down death penalty protocols, ban capital sentences for crimes that did not result in death, and outlaw death sentences for offenses committed as a minor.
Hardiman called the test a “contrived ratchet” that has fueled a “runaway train of elastic constitutionalism.”
“Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments,” he said. “The only constant is that more and more laws adopted by the people’s representatives have been nullified.”
Hardiman isn’t alone in his contempt for the test and its offspring. In May, Florida Gov. Ron DeSantis signed a bill into law allowing the death penalty for child rape. The law is unconstitutional under current precedent, but the Republican governor is attempting to tee up a case for the Supreme Court’s current conservative majority to reconsider that.
To return to the original meaning of the Eighth Amendment would be tricky, though, because the historical record of its adoption is limited and its tradition is contradictory.
The phrase “cruel and unusual” was lifted from the English Bill of Rights of 1689 and included in Virginia’s 1776 Declaration of Rights. Based on this, many originalists argue the Founding Fathers were concerned with two things: stopping the new federal government from legalizing European-style torture, and limiting arbitrary and grossly disproportionate capital punishment.
Americans were disgusted with England’s despotic criminal code, which by the end of the 18th century included over 200 capital offenses. But the early republic was inconsistent in practice. Virginia still allowed whipping, branding, and ear cropping.
If Americans thought themselves better than Europe’s gory spectacles, the reformist penitentiaries created to replace them were home to similar horrors. Nineteenth century American prisons disciplined inmates through floggings, “shower baths” that simulated drowning, and shackling them in excruciating stress positions. A pregnant woman and a mentally ill man were whipped to death in New York’s Auburn State Prison in 1825 and 1846, respectively.
The Bill of Rights only applied to the federal government then. It wasn’t until 1910 that the Supreme Court issued a major Eighth Amendment opinion, ruling that a 15-year sentence to cadena temporal—hard labor while perpetually shackled—constituted cruel and unusual punishment.
Supreme Court Justice Joseph McKenna noted in his majority opinion in that case, Weems v. United States, that the record concerning the ratification of the Eighth Amendment was sparse, but he argued that the Founding Fathers didn’t include it merely to ban thumbscrews. “Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse,” McKenna wrote. “But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their jealousy of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.”
Hardiman is correct that the “evolving standards” test is a blunt political tool. Standards do not always evolve the way progressives would prefer, despite aspirational rulings from liberal justices. But the impoverished Eighth Amendment that Hardiman and other conservative jurists would prefer would be nothing but a museum exhibit, giving license to the most punitive fantasies of lawmakers short of bringing back the rack and breaking wheel.

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